Under the National Employment Standard, an employee who is a parent or who is responsible for the care of a child has an entitlement to request flexible working arrangements to assist them in caring for the child if the child:
- Is under school age, or
- Is under 18 and has a disability
An employee will be eligible to make a request for flexible working arrangements under the NES where either they are a permanent employee that has completed at least 12 months of continuous service with the employer or is a long term casual employee.
A request for flexible working arrangements requires the employee to place their request in writing and set out the details of the change sought and the reasons for the change. Examples include:
- Changes in hours of work
- Changes in patterns of work
- Change of status of employment or
- Changes in location of work
The employer has an obligation to consider the employee's request and provide the employee with a written response to the request within 21 days, stating whether the request has been granted or refused.
The NES allows an employer to refuse the request, but only on reasonable business grounds. It is noted that the NES does not define reasonable business grounds - therefore an employer must be confident with the reasons relied upon in refusing the request, and they should have evidence to support those reasons.
Where reasonable business grounds for the refusal do not exist, the employer may be in breach of the Act. Consequently, an employer found in breach of the Act may be faced with a maximum penalty of $33,000 per breach for corporations and $6,600 per breach for individuals. Additionally, an unreasonable refusal may also expose the employer to liability under the relevant State or Federal anti-discrimination laws.
This article was published in the Summer 2012 Horizon. For a pdf version of the newsletter please click here.